Decook v. Olmsted Med. Ctr.
| Decision Date | 27 April 2015 |
| Docket Number | A14-1180 |
| Parties | Jennifer L. DeCook, et al., Respondents/Cross-Appellants, v. Olmsted Medical Center, et al., Appellants, Kenneth M. Palmer, M.D., Cross-Respondent, Jack F. Perrone, M.D., et al., Cross-Respondents, Ashley Morrow, Cross-Respondent. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
Affirmed; motion granted
*
Olmsted County District Court
Stephen C. Offutt, Patrick A. Thronson, (pro hac vice), Janet, Jenner & Suggs, LLC, Baltimore, Maryland (for respondents/cross-appellants Jennifer L. DeCook, et al.)
Mark Solheim, Paula Duggan Vraa, Margaret Jennings Meier, Larson King, LLP, St. Paul, Minnesota (for appellants Olmsted Medical Center, et al., and cross-respondent Ashley Morrow)
Douglas S. Knott, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Milwaukee, Wisconsin (for cross-respondent Kenneth M. Palmer)
Robert G. Benner, Dunlap & Seeger, Rochester, Minnesota; and
Robert M. Chemers (pro hac vice), Pretzel & Stouffer, Chartered, Chicago, Illinois (for cross-respondents Jack F. Perrone, et al.)
Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and Stoneburner, Judge.
UNPUBLISHED OPINION
In this appeal and related appeal, appellants challenge the district court's denial of their motion to dismiss respondents/cross-appellants' malpractice action for insufficiency of process, and respondents/cross-appellants appeal the district court's dismissal of their malpractice action against the non-appealing defendants for ineffective service of process. We affirm.
Respondents/cross-appellants Jennifer DeCook, Ryan DeCook, and Mya DeCook (DeCooks) assert malpractice claims against appellants Olmsted Medical Center (OMC), Darlene Pratt, R.N., and Brenda Hanson, R.N., and against defendants Kenneth Palmer, M.D., Jack Perrone, M.D., Kimberly McKeon, M.D., and Ashley Morrow, R.N. DeCooks' claims arise out of the birth and delivery of Mya DeCook on January 21-22, 2010. DeCooks are represented by Minnesota licensed attorney Stephen Offutt and hisassociate Patrick Thronson, who is officed in Maryland and is not licensed to practice law in Minnesota.1
DeCooks' attorneys contacted OMC's Risk Management Department in early 2014 concerning service of process on OMC, the nurses, and the doctors. The inquiry was directed to OMC's Compliance Officer, Barbara Graham, R.N. Graham told Offutt and Thronson that she was authorized to accept service on behalf of the clinic and all of the named individuals, and she agreed to accept service via e-mail.
Offutt reviewed the summons and complaint on January 8, 2014. The single signature line on each of the documents lists both Offutt and Thronson, states Offutt's Minnesota license number, indicates that "pro hac vice to be applied for" Thronson, and gives the address and telephone number for their law firm in Maryland. Because Offutt was out of the state of Maryland on other business when he reviewed the documents, he directed Thronson to sign the documents on Offutt's behalf and serve them on Graham by e-mail. Thronson signed the summons and complaint with his name only above the signature line for both attorneys and sent them to Graham by e-mail.
On January 14, 2014, Graham informed Thronson that the person named on the documents and on the Minnesota Secretary of State's website as the registered agent for service of process had retired. Thronson revised the captions on the documents and again sent the documents to Graham by e-mail along with two copies of an acknowledgment of service. On the same day, Thronson sent copies of the documents to the relevant county sheriffs via express mail in order to effectuate service in the event that the arrangementfor service by e-mail failed. On January 15, 2014, Graham signed and returned an acknowledgement of service on behalf of OMC and all of the named individuals. Offutt and Thronson then directed the sheriffs to return the documents that had been sent to them.
On January 31, 2014, OMC and the named individuals filed a joint and separate motion to dismiss under Minnesota Rule of Civil Procedure 12.02(b)-(d). Counsel who signed the motion declined to provide Thronson with information about the bases for the motion. DeCooks' attorneys resent the same documents to the relevant sheriffs for service. On February 24, 2014, Pratt was personally served. On February 27, 2014, Hanson was personally served, and on the same day, a deputy left copies of the documents with Tammy Wing, an Executive Assistant at OMC, in an attempt to serve OMC, Palmer, McKeon, Perrone, and Morrow.
On March 4, 2014, OMC and the named individuals filed a memorandum supporting their motion to dismiss asserting that process, signed only by an attorney not licensed to practice in Minnesota, was defective and that service at an individual's place of employment is ineffective. Offutt then signed new summonses and a new complaint and mailed them to the relevant sheriffs for service.
On March 25 and 26, Pratt and Hanson were personally served. On March 31, a deputy again left copies of the documents with Wing in an attempt to serve OMC, Palmer, McKeon, Perrone, and Morrow.
After a hearing on the motions to dismiss, the district court concluded that the lack of Offutt's signature on the summonses was a technical defect, exercised its discretion topermit amendment of the summonses, and denied the motions to dismiss for ineffective process. The district court concluded that service on OMC, Pratt, and Hanson was effective and denied their motions to dismiss based on ineffective service of process. But the district court concluded that service on the remaining named individuals by leaving the documents at their place of employment was ineffective and granted the motions of Palmer, McKeon, Perrone, and Morrow to dismiss for ineffective service of process. These appeals followed. Before oral argument on appeal, appellants moved to strike portions of "Respondents/Cross Appellants' Reply to Joint Response of [non-appealing defendants] to Cross-Appeal," arguing that the challenged portion of the brief did not address issues presented by the cross-appeal. Ruling on this motion was reserved for the panel.
A cross-appellant's reply brief must be limited to the issues presented by the cross-appeal. Minn. R. Civ. App. P. 131.01, subd. 5(d)(4). The first paragraph of the "argument" section of DeCooks' reply brief in its cross-appeal through line three on page nine of that brief violate the rule by referring only to appellants' arguments despite the fact that DeCooks had previously filed a response to these arguments. Appellants' motion to strike these portions of the brief is granted.
Appellants argue that the district court erred by failing to conclude that lack of a Minnesota licensed attorney's signature on the summons is an incurable defect making the summons void and requiring dismissal of DeCooks' action.2 Whether a defect in a pleading can be cured involves interpretation of applicable rules of civil procedure. Interpretation of a procedural rule is a question of law, reviewed de novo. See Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 601 (Minn. 2014). Interpretation of a rule involves looking first to the plain language of the rule and its purpose and applying the language of the rule when it is plain and unambiguous. Id.
To maintain or conduct an action in Minnesota, an attorney must be licensed and a member of the Minnesota bar. Minn. Stat. § 481.02, subd. 1 (2014); see also Barnes v. Verry, 154 Minn. 252, 255, 191 N.W. 589, 591 (1923) (). Minnesota Rule of Civil Procedure 4.01 requires a summons to be "subscribed by the plaintiff or the plaintiff's attorney." Plainly, lack of Offutt's signature on the summons and complaint made those documents defective.
Appellants rely on Francis v. Knerr, 149 Minn. 122, 182 N.W. 988 (1921), to support their argument that the lack of a Minnesota licensed attorney's signature is an incurable defect rendering the summons void. Francis involved an appeal from an ordersetting aside a judgment on the ground that the court had no jurisdiction to render it. Id. at 123, 182 N.W. at 989. There, a North Dakota attorney, one of two plaintiffs in the lawsuit, signed the summons. Id. The supreme court, noting that the signature was valid as to the attorney-plaintiff who signed, concluded that the signature was "invalid only as to his coplaintiff, and merely resulted in a defect of parties plaintiff which could be taken advantage of only by answer or demurrer." Id. at 123-24, 182 N.W. at 989 (). Francis does not hold that a signature defect cannot be cured: Francis states that a defect in the summons is only jurisdictional when there is a departure from what is required "in any substantial matter affecting the rights of a defendant." Id. at 124, 182 N.W. at 989 (quotation omitted). In Francis, the supreme court affirmed the district court order voiding the summons not because of the signature defect but because the address given for service of the answer did not exist and the person on whom it was required to be served could not be found within the state, thereby substantially prejudicing defendant's ability to answer. Id. at 125-26, 182 N.W. at 990.
Neither Francis nor any other case or rule provides authority for appellants' assertion that the signature defect on the summons is an...
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